July 31, 2013 The Honorable Darrell Steinberg President pro Tempore, California State Senate State Capitol, Room 205 Sacramento, CA 95814 RE: SB 731 (Steinberg) Oppose Unless Amended (As Amended 5/24/13) Dear President pro Tem Steinberg: As you know, the Public Works Coalition members listed below have regretfully taken an oppose unless amended position on your SB 731, a measure related to the California Environmental Quality Act (CEQA). The Public Works Coalition (PWC) is a broad alliance of public agencies, collectively representing nearly every school, California State University, county, and special district in California. Public agencies have a unique and critical perspective on CEQA as both project proponents for public works projects and as lead agencies conducting CEQA review. As we have shared previously, our agencies build and provide the state s vital public infrastructure projects, including schools, streets, transit and other transportation facilities, renewable energy projects and transmission, mosquito abatement, parks, drinking and wastewater pipelines and treatment plants, fire and police stations, civic centers and other public buildings, among many others. We are also directly responsible for all local land-use decisions and our agencies are the lead agencies that conduct the CEQA review required for both public and private projects. In our letter dated July 9, 2013 we shared with you our serious concerns with a number of aspects of the bill and provided suggested amendments. We also had the opportunity to meet with your staff and discuss these amendments. We appreciate the opportunity to provide you with an updated letter based on this conversation. Definition of new information Section 5 of the bill states that argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are caused by, physical impacts on the environment are not considered new information for purposes of an application of the exemption for residential development projects that implement and are in compliance with a specific plan.
Page 2 of 8 The PWC requests that this provision be removed from the bill. The language is unnecessary because it simply restates existing law and yet its inclusion could have unintended consequences. Current law uses this same definition for substantial evidence. Restating it as the definition for new information will only lead to confusion and could have an unintended negative effect. Furthermore, defining new information for these specific types of projects (projects undertaken pursuant to a specific plan) could be interpreted to imply that new information may have a different definition for other purposes. As an alternative, we ask that the language be amended to conform to the existing definitions in CEQA Guidelines section 15384 and 15064(e). Suggested Amendment: Strike this provision from the bill (Government Code Section 65457(c); SB 731 page 7, lines 30-36). In the alternative, we suggest the following amendment to Government Code Section 65457(c) (page 7, lines 30-36): (c) For the purposes of this section, an event as specified in Section 21166 of the Public Resources Code does not includes any new information consisting of substantial evidence as defined in California Code of Regulations Title 14, Chapter 3, Section 15384, or evidence of economic and social changes resulting from a project solely of argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are caused by, physical changes in impacts on the environment. Renewable Energy Projects Section 6 of the bill states that a project applicant for a renewable energy project may present to the public agency, orally or in writing, the benefits of the project. Nothing in current law prohibits a project applicant for a renewable energy project, or for any type of project, from presenting to the public agency, orally or in writing, the benefits of the project. We request that this provision of the bill be stricken, or as an alternative ask that it be amended to clarify that any project applicant may present this information to the public agency. Suggested Amendment: Amend Public Resources Code Section 21080(h) (page 11, line 23): (h) A project applicant for any project, including a renewable energy project, may present to the public agency, orally or in writing, the benefits onsite or offsite of the project, including, but not limited to, measures that will mitigate greenhouse gas emissions resulting from the project or measures that will significantly reduce traffic, improve air quality or replace higher emitting energy sources, and other significant environmental or public health impacts. Notice of Draft CEQA Findings Section 7 of the bill would, in certain cases, require a lead agency to post online the CEQA findings for a project 15 days prior to approval and would require the lead agency to issue notices of availability. The PWC strongly opposes this provision of the bill. Requiring a 15 day notice period would add new responsibilities for public agencies, extend the CEQA process/delay project approvals, and make the CEQA process more cumbersome. This requirement could additionally create a new avenue for CEQA litigation. Suggested Amendment: Strike the amendments to Public Resources Code Section 21081.5 from the bill to revert back to current law (beginning on page 11, line 32).
Page 3 of 8 Annual Mitigation Monitoring Plan Report Section 8 of the bill would require a lead agency to prepare, or cause to be prepared, an annual report on project compliance with mitigation measures required by a mitigation monitoring plan. The PWC strongly opposes this provision of the bill. Adequate safeguards are already in place to ensure implementation of CEQA mitigation. This new unfunded mandate would increase costs and administrative burdens for public agencies, particularly for public works projects. Furthermore, this new requirement could provide additional avenues for litigation. Suggested Amendment: Strike this provision from the bill (Public Resources Code Section 21081.6(d), page 13, lines 33-39). In the alternative, we suggest the following amendment to Public Resources Code Section 21081.16(d) (page 13, lines 33-39): (d) As a part of the mitigation monitoring plan established pursuant to this section, the lead agency shall prepare or cause to be prepared an annual report on project compliance with mitigation measures required pursuant to this division. The report shall be accountability. The lead agency may cease reporting once all mitigation measures are completed. (d) Upon request, the public agency shall make available information regarding the project s compliance with the monitoring and reporting program adopted pursuant to paragraph (1) of subdivision (a) of this Section and with any permit conditions, agreements or other measures adopted pursuant to subdivision (b) of this Section. Noise, Transportation and Parking Thresholds of Significance Section 9 of the bill would require the Office of Planning and Research (OPR) to propose guideline revisions to include thresholds of significance for noise, and for the transportation and parking impacts for residential, mixed-use residential, or employment center projects within transit priority areas. The PWC strongly opposes this provision of the bill and we believe that it sets a very bad precedent. Public agencies, not OPR, are in the best position to determine significance thresholds for noise and traffic standards, taking into consideration site specific local conditions and the local environment. Additionally, we are very concerned with the inclusion of thresholds of significance for parking impacts. Currently, the CEQA Guidelines do not specifically list parking as one of the potential impacts that must be analyzed by a lead agency. Establishing a threshold of significance for parking adds a new administrative burden to public agencies conducting CEQA review. Suggested Amendment: Strike Public Resources Code Chapter 2.7 (commencing with Section 21099) from the bill (page 14, lines 1-38 and page 15, lines 1-13). In the alternative, we suggest the following amendment Public Resources Code Section 21099(d) (page 15, lines 11-13): (d) This section does not affect the authority of a public agency from establishing or adopting transportation or parking standards applicable to projects or more stringent thresholds of significance. Further, it is the express intention of the legislature that no public agency be required to apply the thresholds of significance adopted pursuant to this section with regard to projects other than residential, mixed-use residential, or employment center projects within transit priority areas as defined in this section.
Page 4 of 8 Tolling Agreements Section 10 of the bill authorizes tolling agreements of up to four years. The PWC is neutral on this provision of the bill. We would like to note our interest in completing public works projects expeditiously. Any litigation should be resolved as quickly as possible. Suggested Amendment: None. Concurrent Preparation of the Administrative Record Section 12 of the bill would require, for specified projects, that a lead agency prepare the record of proceedings concurrently with the administrative process, if the project proponent makes this request. The PWC strongly opposes this provision of the bill unless it is amended to require the consent of the lead agency and provide further clarity to the process. The new requirements imposed by the bill as written would add significant project costs and consume valuable resources for projects that may never be approved or legally challenged. We are also concerned that the timeframes contained in the bill may be difficult for public agencies to meet and thus could encourage CEQA litigation. Suggested Amendment: Amend Public Resources Code Section 21167.6.2 (beginning on page 19, line 36): (a)(1) Notwithstanding Section 21167.6, for a project described in Section 21167.6.3, the lead agency, upon the written request of a project applicant received no later than 30 days after the date that the lead agency makes a determination pursuant to subdivision (a) of Section 21080.1, Section 21094.5, or Chapter the record of proceedings in the following manner: (A) The lead agency for the project shall prepare the record of proceedings pursuant to this division concurrently with the administrative project review process. (B) All documents and other materials placed in the record of proceedings shall be posted on, and be downloadable from, an Internet Web site maintained by the lead agency commencing with the date of the release of the draft environmental document for a project specified in Section 21167.6.3. If the lead agency cannot maintain an Internet Web site with the information required pursuant to this section, the lead agency shall provide a link on the agency s Internet Web site to that information. (C) The lead agency shall make available to the public, in a readily accessible electronic format of its choice, the draft environmental document for a project specified in Section 21167.6.3, and all other documents submitted to, cited by, or relied on by the lead agency, in the preparation of the draft environmental document for a project specified in Section 21167.6.3. (D) A document prepared by the lead agency or submitted by the applicant after the date of the release of the draft environmental document for a project specified in Section 21167.6.3 that is a part of the record of the proceedings shall be made available to the public in a readily accessible electronic format within five business days after the document is released or received by the lead agency. (E) The lead agency shall encourage request that written comments on the project to be submitted in a readily accessible electronic format, and shall make any comment available to
Page 5 of 8 the public in a readily accessible electronic format of its choice within five business days of its receipt. (F) Within seven business days after the receipt of any written comment that is not in an electronic format, the lead agency shall convert that comment into a readily accessible electronic format and make it available to the public in that format. (G) The lead agency shall certify the record of proceedings within 30 60 days after the filing of the notice required pursuant to Section 21108 or 21152. (2) This subdivision does not require the disclosure or posting of any trade secret as defined in Section 6254.7 of the Government Code, information about the location of archaeological sites or sacred lands, or any other information that is subject to the disclosure restrictions of Section 6254 of the in Government Code Section 6250 et seq. (b) Any dispute regarding the record of proceedings shall be resolved by the court in an action or proceeding brought pursuant to subdivision (b) or (c) of Section 21167. (c) The content of the record of proceedings shall be as specified in subdivision (e) of Section 21167.6. (d) Subdivisions (g) to (i), inclusive, of Section 21167.6 are applicable to an appeal of a decision in an action or proceeding brought pursuant to subdivision (b) or (c) of Section 21167. (e) The negative declaration, mitigated negative declaration, draft and final environmental impact report, or other environmental document for a project specified in Section 21167.6.3 shall include a notice in no less than 12-point type stating the following: THIS NEGATIVE DECLARATION, MITIGATED NEGATIVE DECLARATION, ENVIRONMENTAL IMAPCT REPORT, OR ENVIRONMENTAL DOCUMENT IS SUBJECT TO SECTIONS 21167.6.2 AND 21167.6.3 OF THE PUBLIC RESOURCES CODE, WHICH REQUIRES THE RECORD OF PROCEEDINGS FOR THIS PROJECT TO BE PREPARED CONCURRENTLY WITH THE ADMINISTRATIVE PROJECT REVIEW PROCESS, DOCUMENTS PREPARED BY, OR SUBMITTED TO, THE LEAD AGENCY TO BE POSTED ON THE LEAD AGENCY S INTERNET WEB SITE, AND THE LEAD AGENCY TO ENCOURAGE REQUEST THAT WRITTEN COMMENTS ON THE PROJECT TO BE SUBMITTED TO THE LEAD AGENCY IN A READILY ACCESSIBLE ELECTRONIC FORMAT. (f) For a lead agency that is a state agency, tthis section shall apply only if the state lead agency consents in writing to the preparation of the record of proceedings pursuant to this section within fifteen business days of receipt of the request to do so. Annual CEQA Lawsuits Report Section 14 of the bill would require the Attorney General to annually submit to the Legislature a report with information on CEQA actions or proceedings. The PWC supports this provision of the bill. Suggested Amendment: None.
Page 6 of 8 Interlocutory Remand Section 15 of the bill specifies that a court shall issue a peremptory writ of mandate specifying what action by the public agency is necessary to comply with CEQA, and that in the case of a negative declaration, mitigated negative declaration, or EIR that the writ may direct the agency to revise only those portions of the document not found to be in compliance. The court is required to make all of the specified findings, including severability. The PWC supports providing trial courts the flexibility to remand to a lead agency for remedying only those portions of a CEQA document found to be in violation of CEQA, while allowing a project approval to remain in place and preserving the portions of the document that have not been found to violate CEQA. This allows projects to proceed on schedule, preventing costly delays to public works projects, and reducing the additional costs and delays associated with revising and recertifying CEQA documents, further protecting public resources. We are, however, concerned that the language in the bill as currently written will further restrain a trial court s discretion. We request amendments to clarify the language so that the courts have the needed discretion to allow projects to move forward while the portions of a CEQA document found to be in violation of CEQA are remedied by the lead agency. Suggested Amendment: Amend Public Resources Code Section 21168.9 (beginning on page 23, line 19): (a) If a court finds, as a result of a trial, hearing, or remand from an appellate court, that any determination, finding, or decision of a public agency has been made without compliance with this division, the court shall issue a peremptory writ of mandate or interlocutory remand order specifying what action by the public agency is necessary to comply with this division, including one or more of the following: (1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part. (2) If the court finds that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project, a mandate or interlocutory remand order that the public agency and any real parties in interest suspend any or all specific project activity or activities, pursuant to the determination, finding, or decision, that could result in an adverse change or alteration to the physical environment, until the public agency has taken any actions that may be necessary to bring the determination, finding, or decision into compliance with this division. (3) A mandate or interlocutory remand order that the public agency take specific action as may be necessary to bring the determination, finding, or decision into compliance with this division. (b) (1) A writ or interlocutory remand order pursuant to subdivision (a) shall include only those mandates or orders that are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. (2) In the case of a negative declaration, mitigated negative declaration, or environmental impact report found not to be in compliance with this division, the writ or interlocutory remand order may direct the agency to revise only those portions of the document found not to be in compliance with this division. (3) The writ or interlocutory remand order shall be limited to that portion of a determination, finding, or decision, or the specific project activity or activities, or document found to be in noncompliance only if a court finds all of the following:
Page 7 of 8 (A) The portion or specific project activity or activities or document is severable or the portion of the negative declaration, mitigated negative declaration, or environmental impact report is severable. (B) Severance will not prejudice complete and full compliance with this division. (C) The court has not found the remainder of the project or document to be in noncompliance with this division. (4) A writ shall include a time by which the agency shall make an initial return of the writ. (5) The trial court shall retain jurisdiction over the public agency s proceedings by way of a return to the peremptory writ or interlocutory remand order until the court has determined that the public agency has complied with this division. (c) An initial return to a writ or interlocutory remand order shall describe all of the following: (1) The actions the agency will take to come into compliance with the writ or order and this division. (2) A schedule for these actions. (3) In the case of a negative declaration, mitigated negative declaration, or environmental impact report found not to be in compliance with this division, the public comment period, if any, applicable to the agency s revision of the document. (d) This section does not authorize a court to direct a public agency to exercise its discretion in any particular way. Except as expressly provided in this section, this section is not intended to limit the equitable powers of the court, including, but not limited to, the power to decline to void any or all project approvals where the court determined that the negative declaration, mitigated negative declaration or environmental impact report did not comply with this division, and the power to decline to decertify an environmental document and decline to void portions of the negative declaration, mitigated negative declaration or environmental impact report that comply with this division. (e) This section does not affect the authority of a court to allow those determinations, findings, or decisions of a public agency that are not found to be in violation of this division to proceed, if the court determines that allowing the public agency to proceed does not, in any manner, prejudice complete and full compliance with this division. Strategic Growth Council Section 16 of the bill states the intent of the Legislature to appropriate $30,000,000 to the Strategic Growth Council to provide competitive grants to local agencies for specified planning activities. The PWC supports this provision of the bill. Suggested Amendment: None.
Page 8 of 8 In conclusion, thank you for your consideration of the requested amendments. We look forward to working with you as the bill moves forward in order to ensure successful implementation of any potential modifications to CEQA. Sincerely, Association of California Healthcare Districts Association of California School Administrators California Association of Sanitation Agencies California Association of School Business Officials California Special Districts Association California State Association of Counties California State University California s Coalition for Adequate School Housing Small School Districts Association Rural County Representatives of California Three Valleys Municipal Water District Urban Counties Caucus cc: Members, Assembly Natural Resources Committee Members, Assembly Local Government Committee Lawrence Lingbloom, Chief Consultant, Assembly Natural Resources Committee John Kennedy, Consultant, Assembly Republican Caucus Debbie Michel, Chief Consultant, Assembly Local Government Committee William Weber, Consultant, Assembly Republican Caucus Ken Alex, Office of Governor Jerry Brown Martha Guzman-Aceves, Office of Governor Jerry Brown